U.S. Citizenship and Immigration Services (USCIS) has begun accepting employment authorization applications for certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident (LPR) status. This is a key element of President Obama’s Immigration Accountability Executive Action initiative. USCIS estimates the number of eligible applicants for work authorization under this rule could be as high as 179,600 in the first year and 55,000 annually thereafter.
USCIS issues H-4 visas to immediate family members (spouse and children under 20 years of age) of the H-1B visa holders. To qualify for work authorization, the H-4 applicant’s H-1B spouse must have either an approved I-140, Immigrant Petition, a pending I-140 petition or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21). These extensions are granted to H-1B workers who have filed PERM applications at least 365 days prior to the six-year max out date, have an I-140 petition pending or have an approved I-140 petition.
Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and a corresponding $380 fee. USCIS began accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an Employment Authorization Document (EAD), he or she may begin working in the U.S.
Supporting evidence to be submitted with Form I-765 includes the following: (1) Evidence of the spousal relationship to the H-1B holder; (2) Evidence that the H-1B holder is the beneficiary of an approved I-140 or has been granted a one-year H-1B extension under AC-21 pursuant to a PERM or I-140 that has been pending for 365 days or more; (3) Evidence that the H-1B beneficiary is currently in H-1B status; and (4) Evidence that the H-4 nonimmigrant spouse is currently in H-4 status.
USCIS has temporarily suspended Premium Processing of H-1B visas in order to implement this new H-4 program.